PROCEEDINGS - DAY TWO P-104. DAY 2 Wednesday, 12th January 2000

Transcription

1 PROCEEDINGS - DAY TWO P-104 DAY 2 Wednesday, 12th January 2000 MR JUSTICE GRAY: Yes, Mr Irving? MR IRVING: May it please your Lordship. This morning I wish to kick off by playing to the court excerpts from two, or possibly three, video tapes which are of relevance. I will explain what the video tapes are, if I may, my Lord. The first one is one minute 20 seconds long. It is a postwar German newsreel, January 1948, and the very first section on it, fortunately, is the reporting of the end of the Auschwitz trial where a number of Defendants, rather as at Nuremberg, had been prosecuted on this occasion by the Polish Government. Auschwitz is in Poland. They had been prosecuted for crimes against humanity, and sentence was passed a week or two before this trial, before this newsreel was shown. So it is a newsreel showing the judge handing down sentence. The relevance is purely the newsreel statement from the judge's findings of how many people died in Auschwitz which is a matter of contention. We are told by the expert witnesses in this case that anybody who says the figure is less than is now commonly assumed is a "Holocaust denier". I purely wish to show that there is a broad band of opinion over the years as to what the figures were. MR JUSTICE GRAY: The judge is expressing whatever view he does express on the basis of, what, the evidence he had heard P-105 during the course of the trial or what? MR IRVING: A very lengthy trial, which ended with the execution of a number of people. We see on this short film the hearing of evidence, the hearing of witness statements, the taking of depositions, the forensic examination of the site which makes the statement that he utters all the more important. My Lord, do you have the short transcript of the passage? I have it in German. MR JUSTICE GRAY: If I have, I do not think I know where it is. I have not seen it. MR IRVING: I can provide one, my Lord. MR JUSTICE GRAY: Or has it been handed in? Is it somewhere in the files because there are a few loose documents? MR IRVING: There is one. If I can kick off by showing that excerpt? MR IRVING: It is a tracking error, I think, my Lord. MR JUSTICE GRAY: You are having a quite a task if you are trying to cope with that as well as everything else. I do not know if there is anyone else around who is more conversant with it than you are? We are getting a sound now. Shall we come back to that one? It may be we do not get the same problem with your next one. MR IRVING: Let me just read out what the translation is, if I may? MR JUSTICE GRAY: Yes, please do. MR IRVING: This is a translation of the German text: P-106 "In Cracow the trial of the principal culprits for the Auschwitz concentration camp came to an

2 end before a Polish court. The Defendants were German camp guards or members of the German camp administration staff. Unheard-of atrocities against the camp inmates, particularly against female prisoners, were proved against them. Altogether nearly 300,000 people" -- this is the part I am relying upon, my Lord -- "from the most different nations died in the Auschwitz concentration camp. The court sentenced 23 of the accused to death, six to life sentences and 10 to lengthy jail terms; one was acquitted". It then continues with the same statement: "The Auschwitz concentration camp remains as it stands today, as a monument of shame to the lasting memory of its 300,000 victims". Of course, nowadays, my Lord, we are told a very different picture of Auschwitz, but that was within the immediacy of the event. MR JUSTICE GRAY: I appreciate that no one is being too fussed, I understand why not, about the admissibility of the evidence, but this reads to me not like the judge or the court talking but some sort of newsreel. MR IRVING: It is a German official newsreel produced in early 1948 at the time that Germany was under allied occupation and all the media outlets in Germany were licensed by the allied authorities. P-107 MR JUSTICE GRAY: Yes, but, I mean, in terms of evidence, I am not sure this has terribly much weight, does it? MR IRVING: Except, my Lord, for two arguments here: firstly, if the allegation is that anybody who states figure less than one million or 4 million, whichever figure we look at, for Auschwitz is a Holocaust denier, then, denial, apparently started very early; and, secondly, if this was one of the documents before me at the time I wrote my book, my Lord, then I could hardly be accused of manipulation or distortion if I choose to rely on this document rather than on the evidence of someone like Rudolf Hess. MR JUSTICE GRAY: Where am I going to put it because I think we must have a system of finding a home for every document that is handed in, if you are going to rely on it. MR IRVING: My Lord, that should be in the bundles of transcripts, in my submission. MR JUSTICE GRAY: Perhaps the Defendants can help because let us be sensible about putting them were they belong? MR RAMPTON: Yes. I suspect what is going to happen during the course of this trial is that we are going to create new files as we go along. The resources of Her Majesty's courts probably do not run to that. So I think what we had better do is, as these documents build up, is put them in files -- this is a document I have never seen before either -- and try to provide an identical file for each P-108 person in the court who will need to look at it. MR JUSTICE GRAY: Yes. I do not want to spend undue time on it, but in some ways it is better to try to find them a spot in the existing bundles where they logically belong rather than having a, sort of, rather random new file created with whatever happens to turn up. MR RAMPTON: Yes, that is probably right. The only place I can think of to put this at the moment is with Mr Irving's statement.

3 MR JUSTICE GRAY: Yes, I think that may be right. MR IRVING: In my statement? MR RAMPTON: It has no other natural home that I can think of. MR JUSTICE GRAY: Yes, I think that may be right. MR IRVING: Now, I add to your Lordship's misery by giving you the transcript of the video which we will now show? MR JUSTICE GRAY: Yes. For the time being, at any rate, we shall put this in C4, shall we? Is that what you mean, Mr Rampton? MR RAMPTON: Yes, I think it is C4. Unfortunately, mine do not any longer correspond to the numbers -- nor does Miss Rogers'. MR JUSTICE GRAY: The other thing is we need a hole puncher. MR RAMPTON: Tab 1, C4, my Lord. MR JUSTICE GRAY: Yes, that is what I thought, at the back. MR RAMPTON: This next one, what is the number of the transcript file? The next one goes in D(ii). I do not P-109 know which of the D(ii)s it will be; I have a feeling it is already there actually. MR JUSTICE GRAY: It is worth spending just a little bit of time on this sort of thing at the moment because then we can get the system right for the future. MR RAMPTON: D(ii), tab -- my Lord, the best place for it is at the back of the second volume of D(ii) where it will have a new tab No. 23. MR IRVING: I believe I am right in saying that this transcript was not already provided by the Defendants; this is a new transcript. MR JUSTICE GRAY: No, I think that is right. I think that is accepted. Shall we play it now? MR IRVING: My Lord, can I just explain what it is? MR JUSTICE GRAY: Yes. MR IRVING: This is a transcript of a tape of a news programme broadcasted in Australia on July 20th 1994 on ABC Television in Australia. It is a typical kind of news commentary programme, rather like News Night, which starts off with the news bulletin and then follows with a feature. The feature on this occasion was a feature called "The Big Lie". I do not propose to run the whole tape, but to start about three minutes in where I have positioned it as at the present which is page 2 near the top, my Lord. Mr Anthony Lerman of ---- MR JUSTICE GRAY: Yes. P-110 MR IRVING: --- the Institute of Jewish affairs is about to start speaking. The reason I am playing it is because your Lordship will see that this interview provides the Second Defendant, Professor Lipstadt, with a chance to express her opinions unopposed. MR JUSTICE GRAY: Yes. MR IRVING: I feel it is appropriate to allow her some minutes of the court's time in this rather oblique manner to express her opinions. MR JUSTICE GRAY: Yes. MR IRVING: I understand that she will not be testifying in person in this case. MR JUSTICE GRAY: Yes. (Excerpt of video was played)

4 MR IRVING: My Lord, I pause very briefly there and invite your attention to one scene in the newsreel that is being displaced, black and white newsreel, where we are no longer outside the railroad trucks filming the people climbing into the railroad trucks, but the camera has suddenly positioned itself inside the railroad trucks. I am not going to draw any inferences from that at this moment, my Lord, but we are suddenly inside a darkened railway truck, taking a shot from the inside to the outside as people climb in towards us. MR JUSTICE GRAY: Yes. MR IRVING: That is the only point I make, my Lord. My Lord, P-111 this is Professor van Pelt who will be testifying in this case. This is the actual building which we will be talking quite a lot about over the coming weeks, crematorium No. 2. MR JUSTICE GRAY: At Auschwitz? MR IRVING: At Auschwitz -- correction, at Birkenhau, my Lord, which is five miles from Auschwitz. MR IRVING: My Lord. MR JUSTICE GRAY: Is that all you want from that, Mr Irving? MR IRVING: Yes. Your Lordship will see from the transcript the rest concerns Rwanda ---- MR JUSTICE GRAY: Yes, I have read on and I did not think there was anything in the rest of it. MR IRVING: Unless the Defendants object, I would not propose to play the rest of the tape. MR JUSTICE GRAY: I am sure they will not. MR RAMPTON: No. MR IRVING: My Lord, I do not know if you consider that was a useful exercise? I would welcome your Lordship's guidance on ---- MR JUSTICE GRAY: Well, to be frank, I think not very. In the end we have to get down to the specific criticisms of your historical approach. MR IRVING: Yes. MR JUSTICE GRAY: How we are quite going to deal with it, I do not know, but I think that is what has to be grappled with P-112 and, from my point of view, the sooner the better. MR IRVING: We are also concerned with the Second Defendant here. My Lord, I understand she will not be having a chance to speak and I will not be having a chance to cross-examine her. I think it was a useful exercise because it gave us a chance to see her in action. I think she could have handled herself under cross-examination, had she proposed to do so. MR JUSTICE GRAY: You are entitled to make the point that she is, apparently, not going to give evidence. I have that point and I have now had the opportunity of seeing her on the interview. MR IRVING: The other point I wish to draw attention to in the video is that the other witness who will be called, Professor van Pelt, draws great attention to the building he was standing on which was crematorium No. 2 in Birkenhau. He points to the holes, he points to the room. He says, "This is where it happened". In another video which I will show on another occasion, my Lord, he goes into much greater detail more emotionally saying, "This is where it happened, this

5 was the geographical centre of the Holocaust", and so on. MR JUSTICE GRAY: You say that is a post war reconstruction? MR IRVING: No, my Lord. We say something different about that. This is crematorium building in Birkenhau. What we say about that is that it was not what the Defence make P-113 out that it was. With your Lordship's permission and consent, I do not want to reveal precisely the arguments we will lead on this occasion. We will give the Defence great time to prepare counter arguments and we have spent a great deal of time and money with architectural consultants and so on providing this evidence. I would prefer to leave that evidence ---- MR RAMPTON: Can I intervene to say something about that? I do not find myself left very happy about what Mr Irving has just said. The days are long gone where a Claimant who responds to a plea of justification is entitled to keep his rabbits in his back pocket and pull them out when it suits him so as to deprive the other side of due notice so that they can deal with it. If he is sitting on expert reports, expert evidence, as indeed he flagged up yesterday in his opening that he was, then we must have them. MR JUSTICE GRAY: I think that is right. Can we just take stock at the moment, Mr Irving, and see where we are going? You did, I think, say you were intending to show three videos. Are you really wanting to show a third one? MR IRVING: I sense a certain impatience of your Lordship. MR JUSTICE GRAY: I hope I am not displaying impatience. I am just telling you how I see the priorities. I am not impatient. P-114 MR IRVING: Possibly when we come to the Auschwitz phase, it will be useful to show the next one which does concentrate much more closely on the fabric of the sites of Auschwitz. MR JUSTICE GRAY: May I ask you, following up what you told me yesterday about the misunderstanding, whether it is or it is not agreed that Auschwitz should be taken separately and first? MR IRVING: We have agreed that, my Lord, and we have reached a very satisfactory arrangement on the presentation of our principal witnesses from overseas. MR JUSTICE GRAY: That is very good to know. Your opening is really concluded now, as I understand it? MR IRVING: That is so, my Lord. MR JUSTICE GRAY: So I think probably, unless you tell me that there is something else you want to deal with first, the time has come for you to start giving evidence. MR IRVING: What I had proposed to do this morning, my Lord, the bundle which I submitted this morning and replicates bundle D(ii), I think, which we have already had, which is a very large number of photocopies of all the books which I have ever written, apparently, which have been very ably put together by the Defendants. I had put together a selection of pages from those books on which I was going to draw your attention, passages which would refute statements that had been made by the Defendants and also by counsel yesterday. P-115

6 MR JUSTICE GRAY: In relation to Auschwitz? MR IRVING: No, my Lord. Do I am apprehend that your Lordship wishes to deal immediately with Auschwitz or other different phases? MR JUSTICE GRAY: Well, if we are going to divide up the trial, and I can see the sense of it, into Auschwitz and the rest, it seems to me at the moment, and Mr Rampton may take a different view, I do not know, that it is sensible really to plunge into the issues that arise out of Auschwitz rather than going to anything else, because the time for doing that may be when we get to the second, as it were, half of the trial. MR IRVING: My Lord, the Auschwitz matter is an immensely complicated matter involving the assembly of a great deal of expert material, drawings. The Defendants deluged me on Friday evening after close of business with a further 5,000 pages of documents from van Pelt's report. To start straightaway today with that would put me at a gross disadvantage. I am sorry that there may be a misunderstanding. The agreement we reached was on the dates of presentation of our witnesses from beyond the seas, van Pelt in the case of the Defence and Professor McDonald in my case, and I was still hoping and anticipating we could deal with the reputation aspect first which is well prepared, and push Auschwitz along away from us for a while. P-116 MR JUSTICE GRAY: Well, you say "for a while", I mean how long is the while? MR IRVING: As long as is necessary for me to deal with the reputation aspects of the case. MR JUSTICE GRAY: Well, I do see the sense of your establishing, I think by evidence, your reputation. I do not myself think that will take very long because, bear in mind, I have read a lot of the material. That is not to say I do not want to hear you say it from the witness box in summary. MR IRVING: My Lord, you have read it, but the Press have not. MR JUSTICE GRAY: Yes, but the exercise is not really entirely for the members of the Press. I do not think we want to take a lot of time in dealing with matters which are not uncontentious, but which, perhaps, are not at the heart of what is the true issue between the parties. I am very anxious we get on if we can as soon as possible. Can I just see what Mr Rampton would suggest as the appropriate course? I think my own view is that Mr Irving ought to go into the witness box from now on because I think the case has really been opened. I see the sense of hearing some evidence about his reputation by way of preliminary. MR RAMPTON: I have read his witness statement. Apart from what he said in his opening yesterday, I really have no clue, no real clue, about what his case is on the detailed P-117 factual issues. I am in the same position as your Lordship found yourself yesterday or said you did. MR JUSTICE GRAY: Yes. MR RAMPTON: I would like to know what his case is and I do not. MR JUSTICE GRAY: Yes, well, I understand that. MR RAMPTON: I do not mind what order he takes to do that. If he wants to saturate with his historiographical issues, his techniques and the inaccuracies of the criticisms which we have

7 made, that is no problem to me at all. Whether he does it from the witness box or whether he does it as part of his opening, again I really do not mind. MR JUSTICE GRAY: No, I do not think it is terribly important, but I think it probably is properly done by evidence rather than by further opening statements. MR RAMPTON: I agree. If he says he is not yet prepared to deal with the Auschwitz issues because they are, indeed, detailed and complicated, that is perfectly all right with us, but I do want to know what his case is and at the moment I do not. MR JUSTICE GRAY: Well, his case is to be found not only in his witness statement plainly but in the pleadings. MR RAMPTON: Yes, I have some of his case from the reply. MR JUSTICE GRAY: Yes. That is quite comprehensive, it appeared to me, on the extent to which Hitler is responsible for the Final Solution, relatively speaking. P-118 MR RAMPTON: Yes, relatively. MR JUSTICE GRAY: It is not, if I may say so, Mr Irving, very detailed in relation to Auschwitz. I have the broad thrust of your case, but I think there is a lack of detail. MR IRVING: My Lord, I am ignorant of the rules of procedure in this matter. Would it be possible for me to be examined in the witness box on two occasions? MR JUSTICE GRAY: Yes. Let us get clear what is being proposed. It is being proposed that there should be a division of this trial really into two separate compartments, one is Auschwitz which is to an extent a free standing issue, it seems to me, a discrete issue. The other is all the other issues, such as the bombing of Dresden, Hitler's responsibility for the Final Solution, and so on. Obviously, they are not wholly separate, but I think they can be taken separately for the purposes of the trial. MR IRVING: My Lord, I think a perfectly satisfactory solution which the court will, no doubt, find favour with is that I will go into the witness box today and submit myself to crossexamination on my pleadings, on the statements that I have made, on the correspondence that I have submitted to the other parties, on my opening statement and whatever other matters they choose to put to me. I will answer from the baggage that I carry around in my memory. No P-119 doubt, I will have the opportunity at a later date, possibly when I can go back to my diaries or other papers, to produce materials that I could not produce from memory. I am sure this would be an adequate solution to the problem. MR JUSTICE GRAY: May I make a suggestion and then you can both, if you would like to, comment because I am very conscious you are in person and this is, for obvious reasons, not an easy case for you to conduct in person, but what I would suggest is that you now go into the witness box, that you deal with your reputation and your published works and so on, and you can take it that I have read your witness statement, that you then state, at any rate in broad outline, what your case is on Auschwitz -- I am perfectly happy, as it were, to help you along by asking you questions and then you can elaborate in your answers -- and then for Mr Rampton to crossexamine you in relation to Auschwitz,. MR IRVING: At a later date?

8 MR JUSTICE GRAY: No, straight off, why not? We are dealing with that issue first. MR IRVING: Very well. MR JUSTICE GRAY: Then we will have, I do not know whether this will work in terms of timing, the expert evidence in relation to Auschwitz, hopefully, from your expert and from Professor van Pelt. Then you will have the P-120 opportunity to make submissions about it either at the very end of the case or, perhaps, at an earlier stage. Does that sound a sensible way of proceeding to you? MR IRVING: I am not too happy about being cross-examined on Auschwitz because our work on that is not complete. Your Lordship may consider this is irrelevant, whether our work on that is completed or not, because I am being asked about my own work and my own writings, and things that I may find out in the future are neither here nor there which is the phrase that I used yesterday, but I am sure your Lordship will have my interests at heart. MR JUSTICE GRAY: Yes. I am very anxious that you should say whatever it is you want to say. Your case should be fully deployed. But the case has been brewing a very long time. I am a bit alarmed to hear that you are not, as it were, fully up to speed on the Auschwitz issue. MR IRVING: We have been fully up to speed repeatedly, my Lord, with all the indications of that phrase. Every time we thought we were up to speed, we then received a fresh avalanche of binders with further documents. MR JUSTICE GRAY: Yes, plus the 5,000 pages on Friday. MR IRVING: Indeed, and more during the weekend. MR JUSTICE GRAY: Would you be content to proceed along the lines I have indicated and if you reach a point where, for example, Mr Rampton is putting to you a document which you have not had a chance to look at before, then you make P-121 that point and ---- MR IRVING: Precisely. MR JUSTICE GRAY: --- we ask him, perhaps, to go on to some other point? MR IRVING: I believe that the present atmosphere and climate of opinion in court is, as Mr Rampton rather indicated, it is not fair to sand bag your opponents with surprise materials. MR JUSTICE GRAY: That is very much the way in which litigation is now conducted. MR IRVING: And we certainly have not done so. I found it mildly offensive that the Defendant should imply that we had. I have subjected the Defendants to a stream of questions over the last few weeks on their reports which, clearly, indicates which way we are thinking. MR JUSTICE GRAY: Well, may I now ask Mr Rampton whether he is happy to proceed in the way I have just outlined? MR RAMPTON: I will proceed in any way your Lordship wants; the problem I have starting straightaway with Auschwitz is simply a practical one. I do not have my Auschwitz papers here. I have to go and get them. MR JUSTICE GRAY: Yes. MR RAMPTON: We will not get to Auschwitz today? In that case, there is no problem, I can start tomorrow. If I do not have to cross-examine today, then I do not have any problem at all. I will start wherever it pleases your

9 P-122 Lordship tomorrow. MR JUSTICE GRAY: But, in principle, the idea of dealing with Auschwitz separately is one that I believe you are in favour of? MR RAMPTON: Yes. We were given an indication that Mr Irving's opening in evidence-inchief would take us up to about the end of the week after next, that is to say, until Monday, 24th January, which is why Professor van Pelt is not here at the moment. So, in that sense I have a slight reluctance to start on Auschwitz until he gets here. It is not an overwhelming reluctance by any means at all. I can quite easily, on the other hand, start with something completely different. I can start with issues arising from Professor Evans' report without any problem at all. MR JUSTICE GRAY: He covers really the whole gamut. MR RAMPTON: I know. From your Lordship's point of view, that is perhaps a little inconvenient. The alternative -- it is one I do not advance with any great warmth -- is to adjourn this case until the beginning of next week by which time Mr Irving should be up to speed on Auschwitz. I say that for this reason. Although it is perfectly true that the source documents were served on him last week, Van Pelt's report, the fact is that a very large number of those reports, documents, plans are illustrated in van Pelt's report; that they have been P-123 available in the archives in Auschwitz and in Moscow for a very long time. The main report was served at the end of July last year. I do not have all of that much sympathy with Mr Irving -- I have some, of course, because he is in person. MR JUSTICE GRAY: Yes. I think the point you make is actually a fair one, that Professor van Pelt makes his point in his report without actually exhibiting the source material, but it is pretty obvious what he is saying. MR IRVING: My Lord, it is not. Architectural consultants who have asked us for detailed drawings of many levels of the construction work that went on over a period. They need to know where the light switches were, that kind of thing. You cannot see that kind of information from the rather smudgey photocopies that were exhibited to the report. MR JUSTICE GRAY: Yes. MR RAMPTON: You do not do any better if you look at the nice coloured photographs which Professor van Pelt has now produced in that regard. They are just better copies of what he has already reproduced. MR JUSTICE GRAY: I am very reluctant to adjourn the case. I really think we have to get on for obvious reasons. MR IRVING: My Lord, can we not start the cross-examination on non-auschwitz matters which will certainly take us up to the weekend? I am sure Mr Rampton has a any number of P-124 questions he is curious about. MR JUSTICE GRAY: I am perfectly easy. I think you had between you reached agreement. It appears, perhaps, that is not really right. I do not mind in which order we take things. I think there is something to be said for taking Auschwitz first, but if you prefer that it was dealt with the other

10 way round, that is fine. MR RAMPTON: I can deal with a whole range of different topics, not necessarily in an orderly fashion. That is the trouble. What I am anxious to avoid is when I do get to Auschwitz in crossexamination, perhaps it might be tomorrow, for example, Mr Irving says, "Well, I am sorry, I cannot answer that, I have not had time to think about it or to instruct myself". That is absolutely hopeless. He then comes back, having heard my questions, and we have to start all over again. MR JUSTICE GRAY: Yes, I see that. MR RAMPTON: I am not really interested in attributing blame for these things. He is obviously not up to speed on Auschwitz and I do not really want to cross-examine him on it until he is because it is an unfair contest, apart from anything else. MR JUSTICE GRAY: Let us do it the other way round then. Let us take the other issues. That is really a course that you prefer, is it not? MR IRVING: That was my original proposal, my Lord. P-125 MR RAMPTON: When Professor van Pelt gets here (which is the week after next, I think) then I will start on Auschwitz because that, I would think, would have given Mr Irving enough time. MR IRVING: We are looking forward to it, in fact. MR JUSTICE GRAY: We will proceed on the opposite basis of taking all the other issues. MR IRVING: I am indebted, my Lord. MR JUSTICE GRAY: It is up to you in which order you deal with them, but you will start with your reputation and history which I think you can take quite ---- MR IRVING: In cross-examination? MR JUSTICE GRAY: No, this is in chief. MR IRVING: Right. MR JUSTICE GRAY: Then it is really entirely up to you, I think, how much you want to say in chief, and it is not very easy for you to do because in a sense you will be making a speech from the witness box, or whether you want to simply submit yourself to cross-examination on these various other issues, Dresden, Hitler's role, and the like. MR IRVING: The court would simply certainly prefer for reasons of integrity that the evidence should be under oath. MR JUSTICE GRAY: I would, I think that is the right way of doing it. MR IRVING: Then the sooner I go into the witness box, P-126 therefore, the better. That may well speed things up. MR JUSTICE GRAY: Yes. So you are happy to proceed in that way? MR IRVING: I am happy to proceed in that way, provided the Auschwitz stage is left until later on. MR JUSTICE GRAY: It is going to be. Mr Rampton, you are content with that as well? MR RAMPTON: Yes, I agree to that. I will find something else to start with. MR JUSTICE GRAY: I am sure you will. Mr Irving, the next problem, and you can really choose whichever you prefer, that is the witness box. If you find it more convenient to stay where you, I am perfectly happy if Mr Rampton is happy at this stage anyway, for the evidence to be given from there. When it comes to cross-examination, the position may be different because I do

11 not see that you can really cross-examine along a row. But it may be easier for Mr Irving to stay where he is for the time being. MR RAMPTON: That is what Miss Rogers suggested. It is a good idea. He has all his papers there. When he gets to be cross-examined, we may have to have a break while he gets all the stuff up there because I cannot cross-examine side by side. MR IRVING: I would prefer, my Lord, the first part of the cross-examination should be done from box, but when we P-127 come to the Auschwitz stage where we will have papers, I might revert to your Lordship's original proposal, that it should be continued with me standing here. MR JUSTICE GRAY: We will see about that when the time comes. But would you prefer to give your evidence-in-chief ---- MR IRVING: I would prefer to give it from the traditional place. MR JUSTICE GRAY: Unless you want to deal with anything else, I think you ought to go and be sworn. MR IRVING: Very well, my Lord. At some stage, of course, my Lord, your Lordship is aware wish to deal with the Hizbollah allegations and the Farrakhan allegations, but this can done at any time. MR JUSTICE GRAY: I think even that is best done from the witness box because this is a libel trial, it is a rather unusual one, but you will want to give what one might call some of the standard defamation evidence. MR DAVID IRVING, sworn. Examined by the Court. MR JUSTICE GRAY: Mr Irving, I think the best thing is if I give you a little bit if a steer, if I can put it that way. Would you rather sit down? A: I am not sure that I need scaring. Q: No, the word I used was "steer" not "scare", simply so that your evidence has a shape that might make it more comprehensible. Shall we start by your full name address? P-128 A: My full name is David John Cawdell -- I will spell that, C-A-W-D-E-L-L Irving, I-R-V-I-N- G. Q: And address? A: My address is No. 81 Duke Street, London W1. Q: Yes. You have made a witness statement for the purposes of this action and it is dated 22nd January last year. Would you formally confirm that that is so? A: That is so. I have made a witness statement and the statements in it are true. Q: Yes, thank you. Now, you can take it that I have read it, but, as you pointed out a little while ago, the Press is reporting this case and I think it would be right to give you the opportunity to restate in summary form anything that you wish to from that statement. A: I do not have a copy of the statement with me. Q: I think you probably should. Do you have anyone to help you fetch and carry documents? A: My entire staff was called to the Bar just before Christmas, unfortunately. Q: Perhaps if you can provide? Thank you.

12 A: The statement is 18 pages, my Lord. If I were to read the statement out, it would take us until lunch time or would that be too long? Q: I am very much against you doing that because the main object of the exercise is, perhaps, to get your evidence across to me. I have read it, but I am giving you the P-129 opportunity to be selective and make in a summary way any of the points that you want to make again in your oral evidence. A: I think I have made the principal statements from this. I repeated them in my opening statement yesterday. My books have received high praise from established academic, official and government historians in every country where they have been published. I just mention the names of Professor Hugh Trevor-Roper, AJP Taylor, Professor MRD Foot, Captan Stephen Roskill, Professor Norman Stone, Professor Donald Cameron Watt. The reason I have mentioned those names, as your Lordship will see in your files copies of the reviews and praise that these people have given to my works. I have not only written about World War II, of course; I have also written about other matters like the Hungarian Uprising and the German Uranian Research Programme during World War II. John Keegan, the Defence Correspondent for The Daily Telegraph (and your Lordship will be aware why I have stated this) has written: "Two books in English stand out from the vast literature of the Second World War: Chester Wilmott's 'The Struggle for Europe' published in 1952 and David Irving 'Hitler's War'" which appeared three years ago. That kind of quotation rather gives the lie to the statement by the Second Defendant P-130 which we saw on video that nobody takes me seriously. It says here in about 1975 Adolf Hitler's Private Secretary, the late Christa Schroeder, gave me a small pencil sketch, a self-portrait of Adolf Hitler, which he had retrieved from his desk in the last days of the war. She gave it to me as a gift and I keep it. I do not, of course, have any kind of portrait of Adolf Hitler on my office hanging on the wall in the way that has been described. Am I proceeding in the correct manner? Q: Yes, I think this is exactly what I think is the right way of proceeding. A: I consider myself to be an expert on the careers of the principal Nazi leaders, including specifically Adolf Hitler, Goring and Dr Josef Goebbels. I am an expert on the archives about these people. I am expert on the current state of research into German and other wartime persecution and liquidation of the European Jewish communities. Q: You said yesterday -- I am sorry to interrupt you-- that you did not regard yourself as being an historian of the Holocaust, can you just in your evidence ---- A: This is true. Q: --- explain what you mean? A: There is a subtle difference. I am an expert in the state of research but not on their findings, so to speak. I am P-131

13 an expert on the way they go about their research, but not so much on the actual details of the Holocaust, and so on. Q: When you say "they", who do you mean by "they", the Defendants? A: No, my Lord. I am sorry, I should have made myself cleari mean the Holocaust historians, the historians who specialize in that topic. Q: Yes. A: Over the years I have collected a very large archive of original documents and copies of original documents, like private diaries and papers like that, from the top Nazi leaders using various techniques and methods, all entirely legal and, as part of my technique, I would then donate these papers immediately to the suitable archives so they are immediately available to other historians. My views upon politics are on page Q: Yes. A: The Defendants have chosen to refer to my politics and they wrongly categorise them. They say that I am extreme right-wing or something like that. I have never belonged to a political party, left or right, except I think I joined the Young Conservatives at University. My father stood as a Labour candidate in the 1945 General Election. I voted for Sir James Goldsmith, my Lord, if I can make that point in the last election, in other words, neither one nor the other. I regard myself P-132 as a laissez faire Liberal. In other words, I do not really care much about politics so long as they spend the money on hospitals rather than Millennium Domes. I have a family reason for saying that. I do not look down on any section of humanity, either coloured immigrants, I have regularly employed them, or females. Your Lordship will appreciate the reasons why I make these points. I have five daughters, in fact -- I am sorry, I had five daughters. I do not look down on the mentally or physically disabled. I admit to having little patience with smokers and none at all with drug abusers. This is not to say that I have applauded -- I have to state this because I will probably be asked about it -- I cannot say that I have applauded the uncontrolled tide of commonwealth immigration into this country. Like most fellow countrymen of my background and vintage, I regret the passing of the Old England. I sometimes think, my Lord, that if the soldiers and sailors who stormed the beaches of Normandy in 1944 could see what England would be like at the end of this century, they would not have got 50 yards up the beach. I think they would have given up in disgust. Q: You said you are getting towards paragraph 23 of your witness statement, 1048? A: My reputation as an historian. P-133 Q: You said you wanted to develop that and I think now is probably the appropriate time to do that, if you want to. A: I have, of course, a very large collection of ring binders of Press clippings which have been made available to the Defendants and in which they have not shown the slightest interest. Reviews in all the leading newspapers of the world of the books that I have written. I believe I have written about 30. I could have produced all those reviews to the court, but if I just

14 summarize and say that they are largely very favourable reviews, the kinds of reviews that made publishers line up to publish my books until the turning of tide. Obviously, there were some reviews that you could describe as the curate's egg, but, by and large, the reviews were exceptionally favourable. It may be said that the reviewers were not as clever, perhaps, as the expert witnesses whom the Defendants have summoned for this case. That may be one argument; maybe they had not seen though me, perhaps. Arguments like that will be advanced, but I submit this is not the case. These were book reviews written by experts in their own field, like Captain Steven Roskill who was an eminent naval historian, Professor MRD Foot, who is another official historian, Professor Sir Frank Hinsley. If I just summarize it as briefly as that, my Lord? Q: Yes, I think that is sufficient. P-134 A: If you wish to question that, of course, I will be quite happy to put in all the evidence to support the contention, but Defendants have not shown any interest in these statements. Q: Can you help me because I have not alighted on them. Are they in one of the files? A: They were within my discovery. They were disclosed to the Defendants in proper form. Admittedly, I did not do an index of the entire set, but they were shown 16 ring binders full of chronologically organized, properly pasted up reviews and Press clippings in which, who knows, they might have found some goodies they could have used against me, I do not know, but they did not bother with them. Q: Take your own course, Mr Irving, but do you now want to deal with the publication of "Denying the Holocaust"? A: The publication of the book. I paid no attention to that book, my Lord, until It did not come into my ken until I believe it was published in 1994, but in April 1996 we published in this country my book the Goebbels' biography, "Goebbels. Mastermind of the Third Reich". Your Lordship will be aware this is the only book that I requested that your Lordship study in some detail because it is a book that I am particularly proud of. When we began marketing that book in the United Kingdom, which meant literally that I and my publisher imprint rented a van and visited approximately 980 P-135 bookstores up and down the length and breadth of the country, which is a very enjoyable exercise. I do not do it out of tedium; it is very interesting to visit the bookstores and their managers. We marketed the book directly to them and we sold many thousands of copies in this manner, but we came across the phenomenon that in a number of bookstores, particularly in the Waterstones chain, the head of the history department took an aversion to me. After visiting a number of the bookstores, it became quite plain that the reason for the aversion to me was the fact that they were selling the book "Denying the Holocaust", published by the first Defendant and written by the Second Defendant. This book was being believed by Waterstones or by their employes and by, no doubt, other bookstores too. It was causing me considerable concern because these bookstores were thereupon refusing to stock my books. So I thereupon during that tour began to purchase copies of "Denying the Holocaust" as evidence that the book was on sale within the jurisdiction. I put the publishers on notice. I put the author on notice. I put certain of the book sellers themselves on notice because under the Defamation Act

15 anybody in the distribution chain can be held liable for the peddling of libels. I subsequently, of course, separated those -- P-136 I discontinued the action against the book sellers for reasons that need not occupy the court. At the beginning of September 1996, which is that same year, which had been a very harrowing year for me, as I had seen my American publishers, St Martin's Press, in conjunction with my big American publisher, Doubledays, simultaneously deciding, we now learn, upon representations made by the Second Defendant not to go ahead with publication of my Goebbels' biography, I decided that I had no recourse but to take libel action against this book which was, obviously, part of the cause of my problem. So I issued the writ, after taking usual procedural steps, the letter before action and so on, I think it was dated September 6th Q: Yes. Now, you have selected for complaint a number of particular passages from the book and I think it would be appropriate if you were to deal with them, and where you best find them, I do not know, but certainly they are to be found in your Statement of Claim, but it may be you would rather deal with it in some other way. A: May I return my papers and collect the Statement of Claim? Q: Yes, of if you point out where they are, perhaps somebody can do it for you rather than having you go backwards and forwards? P-137 A: They are in the ring binder. Q: Thank you very much. A: My Lord, I was defamed and libelled on a number of pages in the book. I do not propose to read out, unless your Lordship wishes otherwise, the specific passages. Q: No. You are entitled to take your own course about that but I think what you ought to do is just give an indication of ---- A: I will read out ---- Q: --- why you object to the passages that you have selected for complaint. A: If I go to paragraph 9 of the Statement of Claim which is "The natural or ordinary meaning of the words complained of"? Q: Yes. A: I contend that the passages meant, and were intended to mean and understood to mean, firstly, "that the Plaintiff", meaning myself, "is a dangerous spokesperson for Holocaust denial... for denial forces who deliberately and knowingly consorts and consorted with anti-israel, anti- Semitic and Holocaust denial forces and who contracted to attend a world anti-zionist conference in Sweden in November 1992, thereby agreeing to appear in public in support of and alongside violent and extremist speakers, including representatives of the violent and extremist anti-semitic Russian group, Pamyat, and of the P-138 Iranian-backed Hezbollah and of the fundamentalist Islamic organization Hamas and including

16 the black Muslim leader Louis Farrakhan, born Louis Eugene Walcott, who is known as a Jewbaiting black agitator, as a leader of the US Nation of Islam, as an admirer of Hitler and who is in the pay of Colonel Gaddafi". My Lord, the wording that I use in this is, of course, very closely related to the wording used in the work complained of. I have not chosen those words myself. I have merely distilled them out of the Defendant's text and adhered as closely as possible to the original wording. Q: Yes. You are just paraphrasing really? A: I am not even paraphrasing, my Lord. I am gluing the words together into a complaint form using the words actually used by the Defendants in the work complained of. Q: That is what I meant by "paraphrase". A: So I have added no colour, I have turned up no volume. These are the extraordinary words used to describe me by the Defendants. They say, "that the Plaintiff", myself, "is an historian who has inexplicably misled", in other words, the word "inexplicably" is in the original book, "misled academic historians like Ernst Nolte into quoting historically invalid points contained in his writings", my writings, "and who applauds the internment of Jews in Nazi concentration camps". I am accused of having applauded P-139 the internment of Jews in Nazi concentration camps which is a particularly perverse allegation in my view. No. (iii) "that the Plaintiff", David Irving, "routinely perversely and by way of his profession, but essentially in order to serve his own reprehensible purposes ideological leanings and/or political agenda", and here are the allegations, "distort accurate historical evidence and information; misstate; misconstrue; misquote; falsify statistics; falsely attribute conclusions to reliable sources; manipulate documents; wrongfully quote from books that directly contradict my arguments in such a manner as completely to distort their author's objectives and while counting on the ignorance or indolence of the majority of readers not to realize this". Q: May I interrupt and ask you this? Am I right in thinking (and I may be quite wrong) that really that is the imputation against you which causes you the most concern? A: Professionally, clearly so, my Lord. Q: Yes. A: I mean, the name calling is neither here nor there and your Lordship may make of it what your Lordship wants, I submit. Clearly, some of the name calling will stick, but it would be a real waste of this court's time if I take each of the names I have been called in turn and try to prove that is not so. This is what has cost me my career, unless the court disposes otherwise at the end of P-140 this trial, my Lord. I complained that the work complained of describes me as an Adolf Hitler partisan who wears blinkers and skews documents and misrepresents data in order to reach historically untenable conclusions specifically those that exonerate Hitler. I am accused of being an ardent admirer of the Nazi leader, Adolf Hitler, an ardent admirer of the Nazi leader, Adolf Hitler; that I conceive myself as carrying on Hitler's criminal legacy and that I placed a self-portrait of Hitler over my desk; that I have described a visit to Hitler's mountain top retreat as a spirit experience; that I have described myself as a moderate fascist. These are the

17 allegations contained in the book. Further, that before the Zundel trial began in 1988 in Toronto, I, the Plaintiff, compromising my integrity as an historian, and in an attempt to pervert the course of justice and one Faurisson, Robert Faurisson whom we saw in the video, that I wrongfully and/or fraudulently conspired together to invite an American prison warden and thereafter one Fred Leuchter, an engineer who is depicted by the Defendants as a charlatan, to testify as a tactic for proving that the gas chambers were a myth". The loaded words in that sentence, my Lord, are P-141 words that are actually contained in the book. "That the Plaintiff after attending Mr Zundel's trial in 1988 in Toronto, having previously hovered on the brink now denies the murder by the Nazis of the Jews". So I deny the murder by the Nazis of the Jews, this is one of the allegations. That I described the memorial to the dead at Auschwitz as a tourist attraction; that I was branded by the British House of Commons as "Hitler's Heir", and that I was denounced by the same British House of Commons as a Nazi propagandist and long-time Hitler apologist and accused by them of publishing a fascist publication, and that this marked the end of my reputation in England. My Lord, it may possibly not be familiar to the Defendants that there is a distinction between an early day motion being put in the House of Commons by a group of disgruntled members of Parliament and the House of Commons actually voting and reaching a decision. It is nothing more than a propaganda move by people who wish to draw attention to something within the privileged atmosphere. It is rather like the privileged atmosphere that exists in this court, my Lord; people can say what they want about me and the newspapers are free to print it. Q: Yes, well, I certainly do know about early day motions, so... A: That some other person had discovered in a Russian archive P this is the allegation in the book -- that some other person had discovered in the Russian archive in 1992 the Goebbels' diaries, that it was assumed that these would shed light on the conduct of the Final Solution, but that I was hired and paid a significant sum by the London Sunday Times to transcribe and translate, although I was a discredited and ignominious figure and, although by hiring the Plaintiff, the newspaper threw its task as a gatekeeper of the truth and of journalistic ethics to the winds and, although there was thereby increased the danger that the Plaintiff would in order to serve his own reprehensible purposes misstate, misconstrue, misquote, falsify, distort and/or manipulate these sets of documents which others had not seen, namely, the Goebbels' diaries; I would do all that in order to propagate my reprehensible views and that I, the Plaintiff, was unfit to perform such a function for this newspaper. Finally, the book contained the allegation that I violated an agreement with the Russian archives, and that I took and copied many plates without permission causing significant damage to them and rendering them of limited use to subsequent researchers. Q: Mr Irving, the first of those imputations that you say that Professor Lipstadt makes against you in her book is one that links you with Hamas and Hezbollah, and again I think you indicated earlier on that you wanted to say P-143